Final Exam Extra Flashcards
Hate Speech - Burning Cross
Had to Intended to intimidate + intimidation occurred this is unconstitutional
[Virginia v. Black]
Hate Speech Generally
Protected Viewpoint
Unprotected Categories of Speech
- Incitement to Violence - Lawlessness
- Fighting Words
- Obscenity
- Libel
- Child Porn
Obscenity found in house due to search warrant for something else
Protected
Child Porn Found in a House during search warrant for something else
Unprotected
Obscenity in theater
Can ban - no protection in a theater
“Child” porn - computer generated
protected b/c not real -no children harmed and that is the reason for all bans
Nudity Bans
Can’t restrict on the basis of content
Ex: could have a restriction about drive in movie theater placement screen angle
- Can’t ban ALL Live nude entertainment BUT
- Zoning ordinances = ok b/c it’s to move Not to Ban Sexual speech is treated as lower value speech
Flag Burning
Protected Speech - Symbolic Conduct but not content neutral
Specialty Plates
Gov’t speech Not a public forum - SO - when the gov’t speaks it is not barred by 1st Amend from determining the content of what it says
Terrorist Material Support
It is Expressive Conduct
BUT Not O’Brien but was Strict Scrutiny (compelling gov’t interest and least restrictive)
- it passed the scrutiny and was able to be restricted
Gov’t Power to Limit Speech in Parks + Streets
Can have reasonable time , place, manner restrictions
2 Questions to ask
1) What is the gov't reason for banning ? 2) Is it too restrictive ? a) Look to how restrictive it is b) Are there alternate forms of communication?
Limiting Speech in Public -
can ban - sound trucks, signs on public property, sleeping in public park
can’t ban - leafleting, hand bills door to door, signs on private property
Traditional Public Forum (Streets & Parks)
Must meet strict scrutiny
Designated Public Forum
not traditionally public forum that has been opened up to for that purpose
Must meet strict scrutiny
Limited Public Forum
open to limited use by certain groups or dedicated solely to the discussion of certain subjects
CAN limit certain Content but
NOT DISCRIMINATE on Viewpoint
- Must be reasonable and viewpoint neutral
Can you have permit fees in public forum ?
Yes - reasonable and neutral
- narrowly tailored , compelling gov’t interest , alt forms of communication
Religious monuments in Public Park
Can refuse bc permanent statues gov’t speech
Speech by Gov’t Employees - Public Concern
Speech is about a Public Concern (Teacher commenting on school funds) then it is allowed (not restricted)
Speech by Gov’t Employees - Internal Work Concern
Speech is about work and inside employment issues = not allowed (restricted)
Speech by Gov’t Employees - In official capacity but public concern
Speaking in your official capacity then not speaking as a citizen (DA office)
- Must use whistle blower laws
Gov’t Funds - VA Benefit Oath of Loyalty
Gov’t cannot limit VA Benefit on an oath of loyalty - compelled speech and can’t penalize it
Gov’t Funded Programs
Can regulate if part of program but not outside the program
Prior Restraints
Submitted for Review prior to publication
Almost NEVER ALLOWED !
Flag Salute
Cannot compel and determine something is orthodox
W Va v. Barnette
State Compelling Access to Private Forum - shopping mall lot
Question to ask - Whether speech is reasonably associated with the group ?
- probably not -
Freedom of Association - boy scouts
can exclude him bc it affects in significant way their ability to advocate their viewpoint
Freedom of Religion - working on Saturday
can’t apply unevenly - Sunday off vs Saturday off - must get unemployment benefits (Sherbert)
Freedom of Religion - going to HS
Can’t make them go - (Yoder)
Freedom of Religion - Peyote
can not use bc religion does NOT exclude you from a valid neutral law generally applied
Religion in Schools
A. School Prayer = Can’t have
B. Graduation Benediction = Can’t have = coercion
C. Evolution teaching = Can’t have b/c endorsement of religion
Legislative Prayer = ok b/c no coercion of adults and history
Establishment (of Religion) Clause
Lemon Test
Lemon Test
- Must have a secular purpose (Not concerned with religion or religious matters)
- Does not have the primary effect of advancing or inhibiting religion, and
- Does not foster excessive entanglement between government and religion.
